Exhibit 10.4
AMENDED AND RESTATED AGREEMENT
between
JETBLUE AIRWAYS CORPORATION
and
LIVETV, LLC
for
THE IN-FLIGHT ENTERTAINMENT SYSTEM LTV2000
AND SUPPLY OF SERVICES
Original Date: September 3, 1999
Revised to: December 17, 2001
Note: Contract Reissued to incorporate Amendments 1, 2, 3
Agreement between JetBlue and LiveTV 1
December 17, 2001
TABLE OF CONTENTS
AGREEMENT
I. RECITALS .............................................................. 5
II. DEFINITIONS .......................................................... 5
ARTICLE 1. TERM OF AGREEMENT; RESTATEMENT ........................ 7
1.1 TERM ........................................................... 7
1.2 EXCLUSIVITY .................................................... 7
1.3 MOST FAVORED PRICING ........................................... 7
1.4 RESTATEMENT .................................................... 7
ARTICLE 2. SUPPLY & INSTALLATION OF SYSTEM ....................... 8
2.1 THE SYSTEM ..................................................... 8
2.3 AIRCRAFT ....................................................... 8
2. ADDITIONAL AIRCRAFT ............................................ 8
2.5 AIRCRAFT INTERFACE DATA ........................................ 9
2.6 PROVISIONS ..................................................... 9
2.7 INSTALLATION ................................................... 9
2.8 REINSTALLATION ................................................. 9
2.9 RECONFIGURATION ................................................ 10
2.10 GENERAL CONDITIONS ............................................. 10
2.11 COMPLETION OF INSTALLATIONS, PERFORMANCE TESTING ............... 10
2.12 APPROVED AIRCRAFT .............................................. 10
2.13 REGULATORY AND LEGAL COMPLIANCE ................................ 11
2.14 PASSES ON JETBLUE FLIGHTS ...................................... 11
2.15 THIRD PARTY AGREEMENTS AFFECTING INSTALLATION .................. 11
2.16 CHANGES ........................................................ 11
2.17 SYSTEM ENHANCEMENTS ............................................ 13
2.18 DOCUMENTATION .................................................. 14
2.19 CERTIFICATION .................................................. 14
ARTICLE 2A. NRE SALE ............................................. 14
2A.1 PRODUCT DESCRIPTION ............................................ 14
2A.2 USE BY JETBLUE ................................................. 15
2A.3 DELIVERY ....................................................... 15
2A.4 PAYMENT ........................................................ I5
ARTICLE 3. PRODUCT SUPPORT ....................................... 15
3.1 PRODUCT SUPPORT ................................................ 15
3.2 TRAINING ....................................................... 15
3.3 MANUALS ........................................................ 15
3.4 PRODUCT SERVICE ................................................ 16
3.5 REPAIR ......................................................... 16
3.6 SPARES ......................................................... 17
3.7 JETBLUE SERVICE & SUPPORT RESPONSIBILITIES: .................... 17
3.8 IN-FLIGHT TESTING OR OTHER WORK ................................ 17
3.9 COST OF MAINTENANCE REPAIRS, CLEANING AND TESTING .............. 17
3.10 ON-SITE FACILITIES ............................................. 18
3.11 PERFORMANCE STANDARDS--MAINTENANCE ............................. 18
ARTICLE 4. PROGRAMMING SERVICES .................................. 18
4.1 PROGRAMMING RIGHTS ............................................. 18
4.2 PROGRAMMING DISTRIBUTION RESTRICTIONS .......................... 18
4.3 ADVERTISING PROGRAM ............................................ 19
4.4 CESSATION OF DISTRIBUTION ...................................... 20
Agreement between JetBlue and LiveTV 2
December 17, 2001
ARTICLE 5. AVAILABILITY GUARANTEE ................................ 21
5.1 GUARANTEE ...................................................... 21
5.2 CALCULATION METHOD AND EXCLUSIONS .............................. 21
5.3 REMEDY ......................................................... 21
ARTICLE 6. LIVETV PROMOTION AND ADVERTISING ...................... 21
6.1 LIVETV EXPOSURE ................................................ 21
6.2 LIVETV COMMERCIALS ............................................. 23
6.3 PUBLICITY MATERIALS ............................................ 23
6.4 PROMOTION AND IN-FLIGHT PUBLICATION ............................ 23
6.5 USE OF TRADEMARKS .............................................. 24
ARTICLE 7. PRICES AND CHARGES .................................... 24
7.1 SERVICE CHARGE PAYMENTS ........................................ 24
7.2 GROSS REVENUE .................................................. 25
7.3 ▇▇▇▇▇▇▇▇ ....................................................... 25
7.4 SERVICE CHARGE ADJUSTMENT ...................................... 25
7.5 TAXES, CUSTOMS AND DUTIES ...................................... 25
7.6 LOSS OF AIRCRAFT ............................................... 25
ARTICLE 8. REPORTING, INVOICING, AND PAYMENT ..................... 25
8.1 REPORTS ........................................................ 25
8.2 INVOICING ...................................................... 26
8.3 INITIAL INVOICE DATE ........................................... 26
8.4 INVOICE ADDRESS ................................................ 26
8.5 DISPUTED INVOICES .............................................. 26
8.6 PAYMENT ........................................................ 26
8.7 FINANCE CHARGE ................................................. 27
8.8 REPORTING REQUIREMENTS ......................................... 27
8.9 RECORDS AND AUDITS ............................................. 27
ARTICLE 9. DELIVERY, RETURN AND TRANSPORTATION RESPONSIBILITIES .. 28
9.1 DELIVERY ....................................................... 28
9.2 PACKAGING ...................................................... 28
9.3 JETBLUE'S SHIPPING ADDRESS ..................................... 28
ARTICLE 10. SYSTEM OWNERSHIP OF AND RESPONSIBILITY FOR MATERIAL .. 29
10.1 SYSTEM OWNERSHIP ............................................... 29
10.2 RIGHT AND TITLE ................................................ 29
10.3 RESPONSIBILITY FOR SYSTEMS/SPARES .............................. 29
10.4 INSURANCE ...................................................... 3O
10.5.LIENS .......................................................... 30
10.6 IDENTIFICATION OF SUPPLIER ..................................... 30
ARTICLE 11. TERMINATION AND EXCUSABLE DELAY ...................... 30
11.1 TERMINATION BY EITHER PARTY .................................... 30
11.2 CONSEQUENCES OF TERMINATION OR EXPIRATION ...................... 31
11.3 EARLY REMOVAL OF AIRCRAFT FROM JETBLUE FLEET ................... 32
11.4 EXCUSABLE DELAY ................................................ 34
ARTICLE 12. LIMITATION OF LIABILITY .............................. 35
ARTICLE 13. INTELLECTUAL PROPERTY INDEMNIFICATION ................ 35
13.1 CLAIMS OF DIRECT PATENT INFRINGEMENT ........................... 35
13.2 INDEMNIFICATION BY LIVETV ...................................... 35
13.3 CONDITIONS UNDER WHICH INDEMNIFICATION APPLIES ................. 36
13.4 EXCLUSIONS ..................................................... 36
13.5 DISCLAIMER OF WARRANTY AGAINST INFRINGEMENT .................... 36
13.6 LIMITATION OF LIABILITY FOR INFRINGEMENT CLAIMS ................ 36
13.7 INDEMNIFICATION BY JETBLUE ..................................... 37
Agreement between JetBlue and LiveTV 3
December 17, 2001
ARTICLE 14. CONFIDENTIALITY ......................................... 37
ARTICLE 15. MISCELLANEOUS ........................................... 38
15.1 NOTICES
15.2 EXPORT ASSURANCES ............................................ 38
15.3 REPRESENTATIONS AND WARRANTIES ............................... 39
15.4 INDEMNIFICATION .............................................. 39
15.5 DISCLAIMER ................................................... 40
15.6 ASSIGNMENTS .................................................. 40
15.7 NO THIRD PARRY BENEFICIARIES ................................. 40
15.8 GOVERNING LAW ................................................ 41
15.9 MODFICATIONS AND AMENDMENTS .................................. 41
15.10 SEVERABILITY ................................................. 41
15.11 WAIVER ....................................................... 41
15.12 ENTIRE AGREEMENT, MODIFICATIONS AND ARTICLE HEADINGS ......... 41
15.13 NO PARTNERSHIP ............................................... 42
15.14 ENGLISH LANGUAGE ............................................. 42
15.15 SURVIVAL OF RIGHTS OF PARTIES ................................ 42
15.16 TRADEMARKS AND TRADE NAMES ................................... 42
15.17 NO FURTHER OBLIGATIONS ....................................... 42
15.18 SIGNATURE OF THE PARTIES ..................................... 42
ANNEX "A" ............................................................ 44
REVISION B ........................................................... ▇▇
▇▇▇▇▇ "▇" ............................................................ 49
ANNEX "C" ............................................................ 50
ANNEX "D" ............................................................ 51
ANNEX "E" ............................................................ 42
ANNEX "F" ............................................................ 43
ANNEX "G" ............................................................ 44
Agreement between JetBlue and LiveTV 4
December 17, 2001
IN-FLIGHT ENTERTAINMENT AGREEMENT
THIS IS AN AMENDED AND RESTATED AGREEMENT, entered into effective the 7th
day of September, 1999 (hereinafter referred to as the "Effective Date"), and
revised and restated to reflect certain modifications known to the parties as
Amendments 1, 2, 3, by and between JetBlue Airways, a Delaware Corporation
(hereinafter referred to as "JetBlue"), with offices at ▇▇-▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ and LiveTV, LLC, a Delaware Limited Liability
Company, (hereinafter referred to as "LiveTV") with offices at ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
I. RECITALS
WHEREAS, JetBlue is an airline offering passenger air transportation
services; and
WHEREAS, LiveTV has developed an in-seat video entertainment system for
exhibition of satellite based video Programming and moving map information in
aircraft and is willing to supply such a system and other services to JetBlue on
a lease basis; and
WHEREAS, JetBlue desires LiveTV to supply video systems for installation
on certain of JetBlue Aircraft and to supply Programming (as hereinafter
defined) and other services on a lease basis.
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants hereinafter contained, the parties hereto agree to the
following:
II. DEFINITIONS
The following capitalized terms shall have the following definitions.
Certain other capitaiized terms shall have the meanings given them elsewhere in
this Agreement.
"Approved Aircraft" shall have the meaning set forth in Article 2.12
of this Agreement.
"Fleet" shall mean all Approved Aircraft JetBlue is
operating.
"Approved System" shall mean the twenty-four (24) channel LTV2000
System as defined by attached specification in Annex D
"Qualified Flight" shall mean that portion of a flight by a
commercial aircraft that is within the Contiguous United States (or the
territorial waters of the United States appurtenant thereto) and Puerto
Rico (partial satellite coverage depending on flight path).
"Flight Segment" shall mean that portion of a flight between take
off from one airport and landing at the next airport.
"Programming" shall mean programming services provided by LiveTV.
Agreement between JetBlue and LiveTV 5
December 17, 2001
"Wireless Aircraft Data Link (WADL)" shall mean the airborne and
ground system required to provide wireless communication to and from the
aircraft while it is in the vicinity of a WADL equipped airport terminal.
The airborne equipment shall consist of a WADL Airborne Unit (WAU), RF
assemble, antenna and interface cabling.
"Video Server" shall mean the equipment required to provide video
advertising to passengers through the Approved System. Such equipment
shall include a video server, interface cabling and supporting equipment
rack.
"Advertising Revenues" shall mean those collected revenues generated
through advertising sales, direct response fees and other advertising
related sales and fees.
"Advertising Costs" shall mean those direct costs, incurred since 30
August 01, required to develop, certify, launch, sell and maintain
advertising including: sales efforts, production costs, Video Servers,
hardware maintenance costs, processing fees and other costs that are
clearly necessary and directly support the project.
"Advertising Gross Margin" shall mean the difference between the
Advertising Revenues and Advertising Costs.
Agreement between JetBlue and LiveTV 6
December 17, 2001
The parties, intending to be legally bound hereby agree as follows:
ARTICLE 1. TERM OF AGREEMENT; RESTATEMENT
1.1 TERM.
The Initial Term for this Agreement shall be on a Fleet
average of ninety-six (96) months.
The ninety-six (96) month average shall be calculated at the
end of each month by taking the total number of months of operation of all
Approved Aircraft divided by the number of Approved Aircraft in the Fleet.
When this calculation yields ninety-six (96) the Initial Term will have
been completed.
Thereafter, this Agreement shall automatically renew for
successive six (6) months' periods, unless either party shall give the
other sixty (60) days written notice before expiration of the
then-existing Term. The Initial Term and any automatic renewal thereof,
shall sometimes hereinafter be referred to as the "Term."
1.2 EXCLUSIVITY.
JetBlue agrees that it shall not, during the Term of this
Agreement, procure in-flight entertainment systems or services other than
those of LiveTV excluding headsets and headsets cleaning and refurbishing
services.
[****]
1.4 RESTATEMENT.
The parties hereto acknowledge and agree that this Agreement
constitutes an amendment and restatement and that any prior
performance of the obligations hereunder constitutes
performance thereof and this Agreement shall not impose upon a
party the obligation to perform services or other obligations
that have been performed in full previous to the date hereof.
Agreement between JetBlue and LiveTV 7
December 17, 2001
--------------------------
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
ARTICLE 2. SUPPLY & INSTALLATION OF SYSTEM
2.1 THE SYSTEM.
LiveTV will lease to JetBlue its twenty-four (24) channel
In-Seat Video and Moving Map System LTV2000 (hereinafter individually and
collectively referred to as the "System"), for use on board JetBlue A320
family of Aircraft. Each System shall consist of the line replaceable
units (hereinafter sometimes referred to as "LRU's") and Provisions as
listed in Annex "B" and Annex "C".
2.2 SYSTEM COMPONENTS.
LiveTV reserves the right to change part numbers and
descriptions of LRU's and Provisions as the System is further defined, and
reserves its rights to use its inventory of Products in any manner. LiveTV
shall notify JetBlue of such changes in a timely manor.
2.3 AIRCRAFT.
This Agreement shall apply to the Aircraft listed on Annex
"A," attached hereto and hereby made a part of this Agreement, which are
to be equipped with the System and are hereinafter individually and
collectively referred to as the "Aircraft".
2.4 ADDITIONAL AIRCRAFT.
During the Initial Term of this Agreement JetBlue shall have
the option to add up to a total of sixty (60) additional A320 aircraft,
with the same single class cabin layout as the aircraft defined in Annex
A, to this Agreement, (the "Additional Aircraft Option"). Such additional
aircraft will be subject to the terms and conditions contained in this
Agreement. The delivery schedule will be mutually agreed between the
parties.
As part of JetBlue's agreement with Airbus for sixty (60)
option aircraft, JetBlue has the right to exercise options for A319 and
A321 aircraft in addition to the A320. JetBlue will have the right to
install LiveTV in these aircraft subject to the same terms and conditions
in this Agreement, provided these aircraft are equipped with single class
cabin layouts.
It is also recognized that during the Initial Term of this
agreement, JetBlue may acquire additional A319, A320 and A321 aircraft
from those it has committed to on the Effective Date of the Agreement.
During the Initial Term of this Agreement, JetBlue will have the right to
install LiveTV in these aircraft subject to the same terms and conditions
in this agreement, provided these aircraft are equipped with single class
cabin layouts.
Annex "A" will be updated from time to time to reflect the
above changes in fleet.
In the event that any System is to be installed at JetBlue's
request on any Aircraft, which requires a new or revised STC, JetBlue
shall reimburse LiveTV for any and all costs, including without
limitation, any costs associated with any certifications, incurred by
LiveTV in modifying the System.
Agreement between JetBlue and LiveTV 8
December 17, 2001
2.5 AIRCRAFT INTERFACE DATA.
JetBlue and LiveTV will make reasonable efforts to acquire on
a timely basis aircraft interface data required by LiveTV concerning the
relevant design of the aircraft (including but not limited to interior
arrangement drawings, interior colors, aircraft structure, aircraft
electrical power distribution, and circuit breaker panel layout drawings).
In the event the parties are unable to acquire such aircraft interface
data on a timely basis, LiveTV shall advise JetBlue of any revised
delivery dates for the Systems.
2.6 PROVISIONS.
All Provision Kits, as listed in Annex "C", will become
property of JetBlue at the end of the Term of this agreement.
2.7 INSTALLATION.
2.7.1 LiveTV shall supply all labor and services for each
installation. It is understood that LiveTV will bear the
financial responsibility for those installation services. Such
installation shall be performed in accordance with the plans,
drawings, and other specifications provided by LiveTV. JetBlue
shall exercise reasonable oversight over the installations,
and shall support them as required with the appropriate
quality, engineering and maintenance personnel. This includes
the issuing of appropriate Engineering Orders required to
facilitate the installation of the system.
The installations will be completed in accordance with
the scheduled installation dates as provided in Annex A.
2.7.2 As to the first three (3) aircraft to be installed,
LiveTV shall be responsible for retrofitting the System in all
seats. The retrofitting will include modification and
installation of the equipment in those seats, as specified in
Annex E.
For all remaining aircraft, JetBlue will be responsible for
supplying all seats in accordance with the Provisions for In-Seat Video as
set forth in Annex F.
JetBlue shall pay LiveTV $[****] per installation for a hanger
facility for LiveTV to perform the modification and installation
activities as defined in Annex E and F. LiveTV shall provide JetBlue
office and engine storage space at LiveTV's facility. In the event that
LiveTV's facility is not available, JetBlue and LiveTV shall mutually
agree on an alternate facility for the modification and installation
activities.
2.8 REINSTALLATION.
A "Reinstallation" is the installation of the system in an
Aircraft following its removal by JetBlue during a structural inspection
of the Aircraft or for any other reason chosen
Agreement between JetBlue and LiveTV 9
December 17, 2001
--------------------------
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
by JetBlue. Any system that must be replaced in connection with a
Reinstallation because of damage or destruction during removal by JetBlue
shall be supplied by LiveTV at JetBlue's expense. Unless otherwise
provided herein, JetBlue shall bear any costs for Reinstallation when
removal of system is in connection with any heavy maintenance checks or
any other removal directed by JetBlue. JetBlue shall be responsible for
Reinstallation as soon as reasonably possible following the removal.
During C Checks of Approved Aircraft, LiveTV shall provide
technical support at the location of the C Check to assist with the
integration and testing of the System. JetBlue shall reimburse LiveTV for
all reasonable materials and travel related costs. LiveTV shall be
responsible for all labor costs of its own employees and contractors.
2.9 RECONFIGURATION.
In the event that the system is temporarily removed from an
Aircraft after Installation because of interior changes to such Aircraft
("Reconfiguration"), JetBlue shall be responsible for reinstalling the
system as soon as reasonably possible following the removal and shall bear
any costs in connection therewith.
2.10 GENERAL CONDITIONS.
The party performing any Installation, Reconfiguration or
Reinstallation shall comply with the specifications and requirements of
JetBlue's General Maintenance Manual, in a good and workmanlike manner,
shall perform all work in compliance with any applicable airframe or seat
manufacturer's service bulletins or directives, and all regulatory
approvals or permits of United States federal, state or local government
agencies or authorities required for Installations, Reconfigurations or
Reinstallation's or for operation, maintenance or removal of the system
("Regulatory Approvals"), and shall perform all work in compliance with
all applicable rules, regulations and laws affecting JetBlue and its
employees.
2.11 COMPLETION OF INSTALLATIONS, PERFORMANCE TESTING.
Installation, Reinstallation or Reconfiguration shall be
deemed to be complete at such times as the System installed in such
Aircraft has passed a performance test specified and performed by LiveTV
(the LiveTV Acceptance Test) and appropriate entries have been made by
authorized JetBlue and LiveTV personnel in the maintenance log book for
such Aircraft certifying that the system has passed such LiveTV
performance test and that the Installation, Reinstallation, or
Reconfiguration was made in accordance with all Regulatory Approvals. In
the event that any Aircraft is returned to commercial service prior to the
completion, as described above, of any Installation, Reinstallation or
Reconfiguration, JetBlue shall, at JetBlue's expense and until completion
of such Installation, Reinstallation or Reconfiguration, use reasonable
efforts to attempt to inform passengers on such Aircraft that the system
is unavailable for use through the use of pre-flight announcements.
2.12 APPROVED AIRCRAFT.
Agreement between JetBlue and LiveTV 10
December 17, 2001
Following certification by the Federal Aviation Administration
(FAA) and receipt of the Supplemental Type Certificate (STC), each
aircraft shall be deemed an "Approved Aircraft" after completing the
LiveTV Acceptance Test.
2.13 REGULATORY AND LEGAL COMPLIANCE.
LiveTV covenants and agrees to obtain all necessary regulatory
approvals relating to the distribution of the programming services on
board Approved Aircraft, prior to the installation of an Approved System
on any such Approved Aircraft, and upon receipt of such approval, to
comply with the terms of and maintain such approval throughout the Term.
LiveTV further agrees that it will comply with all applicable federal,
state and local laws, regulations and codes in the performance of this
Agreement.
2.14 PASSES ON JETBLUE FLIGHTS.
For purposes of allowing LiveTV personnel to undertake the
Installations contemplated by this Article, the maintenance, repair,
cleaning and testing contemplated by Article 3 and other JetBlue business
related activities authorized by JetBlue, JetBlue shall provide LiveTV
personnel performing such functions with no-cost, space available passes
on relevant flights, subject to JetBlue's concurrence that such passes are
necessary for LiveTV to perform its obligations under this Agreement.
During such flights, LiveTV personnel shall dress in appropriate business
casual attire (no blue jeans or T shirts). In the event LiveTV personnel
cannot be accommodated on JetBlue's flights, LiveTV will make other
transportation arrangements in order to ensure a timely maintenance
response.
2.15 THIRD PARTY AGREEMENTS AFFECTING INSTALLATION.
Prior to Installation, JetBlue shall use its best efforts to
ensure that any conditional sales agreements, mortgages, leases, or other
similar agreements applicable to Aircraft do not contain provisions which
prohibit Installation or otherwise adversely affect or impair LiveTV's
portion of its title to the System or its rights to the same under this
Agreement. On request of LiveTV, JetBlue shall make best efforts to
provide LiveTV with assurances reasonably satisfactory to LiveTV in the
form of consents or acknowledgments of conditional sellers, mortgagees,
lessors, or the like (which may be contained in the mortgage or lease
document itself), respecting LiveTV's portion of its title to the System
or its rights to the same under this Agreement. The consents and approvals
required by this Article shall not contain any condition or limitation
that impairs or prohibits full use of the Aircraft by JetBlue, or causes
any payment by JetBlue or costs JetBlue any fee per Aircraft to acquire
such consents.
2.16 CHANGES.
The System may be revised by LiveTV at any time to incorporate
changes or to ensure compliance with this Agreement and regulatory and
DIRECTV(R) mandated standards. Such revisions shall not adversely affect
charges, delivery, installation or availability performance. LiveTV
reserves the right to make process or design changes in the Products which
do not affect form, fit or function without prior approval or notification
of JetBlue. In the event that JetBlue requests changes in process or
design of the Products, such request shall
Agreement between JetBlue and LiveTV 11
December 17, 2001
be in writing and shall be received at least one hundred and fifty (150)
days prior to the first (1st) requested delivery date for the changed
Product, and LiveTV shall accept such request only if JetBlue agrees to
accept such changes in delivery or price which are, in LiveTVs judgment,
reasonably necessitated thereby and only to the extent that such request
is reasonable. Should JetBlue request changes which are, in LiveTV's sole
judgment, beyond the ability of LiveTV to produce or deliver within the
schedule or for the price proposed by JetBlue, then LiveTV shall have the
right to reject or cancel JetBlue's request for such change(s).
Agreement between JetBlue and LiveTV 12
December 17, 2001
2.17 SYSTEM ENHANCEMENTS.
2.17.1 LiveTV may, from time to time, propose optional changes
to JetBlue to introduce improvements to the System.
LiveTV's proposal shall advise of any changes in
charges, design, performance, weight or delivery
parameters that would result from the incorporation of
such an improvement. JetBlue will have the right to
reject changes that result in additional charges or
affect aircraft performance.
2.17.2 Wireless Aircraft Data Link (WADL)
i. LiveTV, at is expense shall develop, install and
maintain the WADL system, on all aircraft and a
ground station at JFK to support maintenance and
operation of the Approved System.
ii. JetBlue, at its expense, shall develop the rack
assembly required for the installations of the
WADL system on aircraft prior to such time that a
larger equipment rack is available (see 2.17.4
below). LiveTV shall procure and install this
mechanical equipment on all aircraft until such
time that a larger equipment rack is available.
JetBlue shall revise all required aircraft manuals
and provide a maintenance manual for the system.
iii. JetBlue shall provide the facilities at JFK for
the ground system. LiveTV, at its expense, shall
provide and install the WADL ground system
hardware. In the event that LiveTV uses the
services of 3rd parties contracted through
JetBlue, LiveTV and JetBlue shall mutually agree
upon services and LiveTV shall reimburse JetBlue
for all agreed upon costs.
iv. JetBlue, at its expense, shall lead and perform
the certification effort required for the WADL
system and obtain the STC. The STC shall be
transferred to LiveTV after certification. LiveTV
shall maintain the STC and issue JetBlue, upon
transfer, a $[****] credit for this effort.
v. LiveTV, at its expense, will perform all required
DO-160 testing of the WAU.
2.17.3 Video Server
i. LiveTV, at its expense, shall develop, certify,
install and maintain the Video Server on all
aircraft, required to provide video advertising
services to passengers through the Approved
System. JetBlue, at its expense, shall provide
engineering assistance and design guidance to
support the development and certification of the
Video Server.
2.17.4 Equipment Rack
i. LiveTV, at its expense, shall develop and certify
a new equipment
Agreement between JetBlue and LiveTV 13
December 17, 2001
--------------------------
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
rack capable of supporting the current LiveTV
system equipment plus the System Enhancements
described above. LiveTV shall also develop a
preliminary design of a larger equipment rack with
increased room for growth to support future
JetBlue hardware expansions. In consideration for
developing and installing this larger equipment
rack, JetBlue shall pay LiveTV $[****] per rack
at the time of installation.
ii. Upon completion of the development an
certification, LiveTV at its expense, shall
install the new equipment rack at the time of all
new installations.
iii. JetBlue and LiveTV shall work together to evaluate
the benefits, costs and timing of retrofitting
this larger equipment rack on previously delivered
aircraft.
2.18 DOCUMENTATION.
This paragraph deleted.
2.19 CERTIFICATION.
Except as noted under 2.17.2, LiveTV shall, at its expense,
make all required data submittals to the FAA in order to receive an FAA
STC, and will arrange for any FAA-required factory conformity inspections
prior to shipment of the System to JetBlue or the airframe manufacturer,
as the case may be, for installation. It is understood that the FAA may
require, at its discretion, an on-aircraft inspection at the time of
System installation. If the FAA requires such an inspection, both LiveTV
and JetBlue shall work together in good faith to ensure the installation
site and time are determined far enough in advance to arrange for the
on-aircraft inspection. LiveTV assistance at the on-aircraft inspection
shall be provided at no cost to JetBlue. In addition, it is understood
that the FAA may require a flight test of the Aircraft as a condition of
obtaining the STC. JetBlue will pay for up to one (1) hour of flight time
to accomplish any flight-testing required to obtain the STC. LiveTV will
reimburse JetBlue for airplane operating costs beyond one (1) hour of
flight time at an hourly rate of [****] dollars ($[****]). However,
all other costs/expense incurred in obtaining the STC shall be the
responsibility of LiveTV. If LiveTV is unsuccessful in its effort to
obtain necessary certification approval, it shall be the responsibility of
LiveTV to remove the installed Systems and return the Aircraft to a
condition sufficient to satisfy airworthiness and reasonable aesthetic
requirements.
ARTICLE 2A. NRE SALE
LiveTV shall sell to JetBlue the NRE as defined hereinafter,
upon the terms and conditions set forth herein.
2A.1 PRODUCT DESCRIPTION
The NRE shall consist of the drawings, analysis and reports
resulting from the
Agreement between JetBlue and LiveTV 14
December 17, 2001
--------------------------
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
engineering and certification efforts of LiveTV required to install the
LiveTV2000 System and shall include the installation drawings and other
drawings, reports and analysis listed in Annex "H".
2A.2 USE BY JETBLUE
JetBlue shall use the NRE for its sole internal use in operating and
maintaining its aircraft. JetBlue shall not re-sell, transfer, or provide the
NRE to 1) any third party, 2) any entity acquired by JetBlue, 3) any entity
which acquires JetBlue. Neither party intends for this restriction to preclude
or otherwise hamper JetBlue from becoming a publicly traded company.
2A.3 DELIVERY
No later than December 20th, 2001, LiveTV shall deliver to JetBlue
all Installation and Certification NRE as described under 2A.1 above. The NRE is
sold pursuant hereto "As Is", free and clear of claims of third parties that
might restrict the use as authorized and intended hereunder by JetBlue and no
further deliveries are required. This is a final sale and it shall survive the
term of this Agreement.
2A.4 PAYMENT
JetBlue shall pay LiveTV $[****] US for the NRE on the following
payment schedule: $[****] to be received by LiveTV no later than March 01,
2002, $[****] to be received by LiveTV no later than June 01, 2002 and $[****]
to be received by LiveTV no later than September 1, 2002.
ARTICLE 3. PRODUCT SUPPORT
3.1 PRODUCT SUPPORT.
The following Articles sets forth the Product Support
(hereinafter sometimes individually and collectively referred to as
"Product Support") to be provided by LiveTV to JetBlue during the Term of
this Agreement. As used herein, the terms LRU's, Systems, piece parts,
provisions, Provisions Kits and Spares shall hereinafter sometimes be
individually and collectively referred to as "Product" or "Products."
3.2 TRAINING.
LiveTV shall conduct initial training for JetBlue's designated
trainers at JetBlue's facilities at ▇.▇. ▇▇▇▇▇▇▇ Airport, New York, at a
time mutually agreed upon by JetBlue and LiveTV. The training shall
pertain to description and operation for flight personnel, and shall
pertain to familiarization of JetBlue's personnel on the System. Such
training shall be at no cost to JetBlue and consist of mutually agreed
upon two (2) consecutive business days.
3.3 MANUALS.
LiveTV shall furnish, in digital format, one (1) copy of the
Aircraft Maintenance Manuals (AMM) and Maintenance Procedures Manual (MPM)
(the "Manuals") to JetBlue at no
Agreement between JetBlue and LiveTV 15
December 17, 2001
--------------------------
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
additional charge. For the term of the Agreement, LiveTV will furnish any
revisions to Manuals at no charge. The Manuals shall be prepared using ATA
Specification No. 100 as a guideline, and appropriate revisions to manuals
shall be provided. Component Maintenance Manuals will not be provided
under the terms of this Agreement to JetBlue unless required by applicable
regulatory agencies.
3.4 PRODUCT SERVICE.
LiveTV shall perform servicing, troubleshooting/fault
isolation and cleaning of the System in accordance with the manuals
provided under Article 3.3; and removal of malfunctioning LRU's furnished
hereunder, returning same to any LiveTV Maintenance Base as defined in
Article 3.5 hereof, and substituting a spare LRU (a "Spare") listed on
Annex "B," hereby made a part of this Agreement. Product Service will be
provided at ▇.▇. ▇▇▇▇▇▇▇ Airport, New York, and at other locations where
LiveTV can have access to multiple aircraft for overnight maintenance.
JetBlue and LiveTV will mutually agree upon the timing for and location of
these maintenance locations.
3.5 REPAIR.
LiveTV will repair LRU's, including the supply of parts and
labor, once said LRU's have been removed from the Aircraft and returned to
a LiveTV Maintenance Base pursuant to Article 3.4.
Agreement between JetBlue and LiveTV 16
December 17, 2001
3.6 SPARES.
LiveTV will maintain a level of spares sufficient to perform
those service responsibilities specified in Article 3.4
3.7 JETBLUE SERVICE & SUPPORT RESPONSIBILITIES:
3.7.1 JetBlue shall provide access and electrical power to
aircraft to enable LiveTV Line Maintenance personnel to
perform troubleshooting and removal of malfunctioning
System Line Replaceable Units (LRU's) while on the
Aircraft during transits and Remain-Over-Night (▇▇▇)
activities at the Line Maintenance Station.
3.7.2 JetBlue shall provide adequate JetBlue Line Maintenance
personnel to promptly clear the maintenance discrepancy
item from the JetBlue Maintenance Computer system upon
completion of necessary repairs or replacements of
faulty LRU's by LiveTV Line Maintenance personnel.
3.7.3 JetBlue shall undertake the cosmetic cleaning of the
system in connection with its regular cabin cleaning
and;
3.7.4 JetBlue shall advise LiveTV of any worn out, vandalized,
damaged, defective or malfunctioning System or System
components which need more than cosmetic cleaning
promptly after the same comes to the attention of
JetBlue's personnel.
3.8 IN-FLIGHT TESTING OR OTHER WORK.
From time to time LiveTV may be required to perform in-flight
maintenance or performance tests on the System to monitor and assess
performance of the LiveTV service. Upon reasonable notice from LiveTV that
such in-flight maintenance or performance tests are necessary, LiveTV
personnel may travel onboard JetBlue's scheduled flights to perform such
in-flight maintenance or testing, subject however to space availability on
flights selected by JetBlue. Any such in-flight maintenance or testing
will be performed by LiveTV in a manner designed not to interfere with
JetBlue's provision of normal services to its passengers that are not
related to live television service. Any in-flight maintenance or testing
on revenue flights will be with JetBlue's prior approval and in full
compliance with any FAA directives.
3.9 COST OF MAINTENANCE REPAIRS, CLEANING AND TESTING.
JetBlue shall bear its costs and expenses incurred in
connection with meeting its obligations in Article 3.7. JetBlue shall
reimburse LiveTV for costs incurred by LiveTV in repairing or replacing
Systems damaged or destroyed as a result of the negligence or
intentionally wrongful acts or omissions of JetBlue, its, employees,
agents or contractors.
Agreement between JetBlue and LiveTV 17
December 17, 2001
LiveTV will promptly notify JetBlue of any damage for which LiveTV intends
to request reimbursement. Except as otherwise set forth in the foregoing
sentence or in other provisions of this Agreement, LiveTV shall bear all
costs incurred in connection with maintenance, repair, cleaning and
testing.
3.10 ON-SITE FACILITIES.
JetBlue will provide, at no cost to LiveTV, acceptable on-site
facilities at ▇.▇. ▇▇▇▇▇▇▇ Airport for LiveTV inventory storage and LiveTV
Line Maintenance Personnel.
3.11 PERFORMANCE STANDARDS -- MAINTENANCE.
LiveTV shall comply with the specifications and requirements
of JetBlue's General Maintenance Manual, in a good and workmanlike manner,
and in compliance with any applicable airframe or seat manufacturer's
service bulletins or directives, and all regulatory approvals or permits
of United States federal, state or local government agencies or
authorities required for maintenance of the system ("Regulatory
Approvals") and shall perform all work in compliance with all applicable
rules, regulations and laws affecting JetBlue and its employees.
ARTICLE 4. PROGRAMMING SERVICES
4.1 PROGRAMMING RIGHTS.
LiveTV shall obtain the rights to provide on Approved Aircraft
twenty (20) channels of programming including channel(s) in the categories
of sports, news, weather, children's programming and general
entertainment, and four (4) channels of additional programming to be
determined from time to time (the "Programming"). These rights shall be
obtained by LiveTV thirty (30) days prior to the first JetBlue revenue
aircraft flight. In the event that a programming supplier offers terms and
conditions that are not acceptable to LiveTV, LiveTV shall, select and
modify at any time the individual programs provided to JetBlue.
LiveTV shall be solely responsible for all licenses for the
distribution of the Programming pursuant to this Agreement.
4.2 PROGRAMMING DISTRIBUTION RESTRICTIONS.
In no event shall JetBlue, without the prior written consent
of LiveTV, rebroadcast, retransmit, resell, record or duplicate any of the
Programming, or make any alterations, additions or deletions thereto.
JetBlue agrees to comply with any restrictions on distribution of the
Programming imposed by DIRECTV(R) or Programming providers, as notified in
writing to JetBlue by LiveTV. JetBlue hereby covenants and agrees that it
shall not air any advertising or sponsorship of a Competing DBS Service on
an Approved System or any other portion of any in-flight system that
includes the Approved System. A "Competing DBS Service"
Agreement between JetBlue and LiveTV 18
December 17, 2001
shall be defined as television programming or other related services to
commercial or private viewers or subscribers from a system which
utilizes a mid-power or high-power Ku-band communications satellite
other than those of DIRECTV(R), or hardware or technology utilized in
connection with the delivery and/or receipt of such services.
4.3 ADVERTISING PROGRAM
JetBlue and LiveTV shall develop and implement the strategies,
sales efforts, and hardware and software infrastructure
required to provide advertising to passengers' on Qualified
Flights. It is recognized that both JetBlue and LiveTV need to
contribute to the advertising program to make the project a
success.
i. LiveTV and JetBlue shall coordinate the advertising
sales efforts. JetBlue shall give guidance on acceptable
client categories and advertising subject matter. Each
party will assign a project leader for coordination of
all efforts.
ii. To facilitate the sales process, JetBlue and LiveTV
shall agree upon a set of standard terms and conditions
for advertising contracts. JetBlue shall have approval
authority over all advertising agreements with potential
clients. Such approval shall be provided in a timely
manner and shall not be unreasonably withheld.
iii. JetBlue and LiveTV shall agree upon the amount of
advertising time that will be reserved for
self-promotion and give-aways. This shall not supercede
the DirecTV commercials defined under Article 6.2 or be
construed to grant any rights in derivation to the terms
of Article 4.2. It is hereby acknowledged and agreed by
the parties that their rights related to the sale and
broadcast of advertisements on the System shall be
subordinate and inferior to those of DirecTV as set
forth in Articles 4.2, 6.2 and elsewhere herein.
iv. LiveTV shall be responsible for securing, enhancing and
loading/removing all advertising copy materials to/from
the aircraft. JetBlue shall authorize these efforts
under their engineering and maintenance procedures.
v. All material Advertising Costs shall be mutually agreed
upon in advance of the expenditure by JetBlue and
LiveTV.
vi. The Advertising Gross Margins shall be equally shared
between JetBlue and LiveTV ([****]% to JetBlue and
[****]% to LiveTV).
vii. LiveTV shall collect all Advertising Revenue and, once
the project generates a cumulative positive gross
margin, disburse the Gross Margin on a monthly basis. In
the event that the project does not generate positive
Gross Margins, LiveTV shall be responsible for all
LiveTV incurred Costs that exceed the Revenues.
viii. LiveTV shall provide JetBlue with monthly reports as
described under Article 8.0, and audit rights to confirm
both the Revenues generated and the Costs incurred by
the project.
ix. LiveTV shall hold title to and shall maintain the Video
Server.
x. In the event that the advertising program does not (i)
generate a cumulative positive Gross Margin within
[****] after the installation of the Video Server on the
first aircraft, or (ii) generate cumulative positive
Gross Margins
Agreement between JetBlue and LiveTV 19
December 17, 2001
--------------------------
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
for the two (2) calendar quarters prior to the end of
the 18 months period after the installation of the Video
Server on the first aircraft, either party may terminate
the advertising program described within this Article
4.3
4.4 CESSATION OF DISTRIBUTION.
Notwithstanding anything to the contrary contained in this
Agreement, LiveTV may cease distributing any or all affected Programming
to Approved Systems on affected Approved Aircraft in the event that (a)
LiveTV determines that the distribution of such Programming to Approved
Systems on such Approved Aircraft violates any Law (as defined herein),
(b) LiveTV is so required by the Programming provider of such Programming,
or in the event LiveTV's license(s) to distribute such Programming to
Approved Systems on such Approved Aircraft expires or terminates. "Law"
shall be defined as any Federal Communications Commission (FCC), FAA or
other governmental (whether international, federal, state, municipal or
otherwise) statute, law, rule, regulation, ordinance, directive or order,
including, without limitation, any court order. Notwithstanding the
foregoing, in the event LiveTV determines that the distribution of any
Programming to any Approved Aircraft violates a Law, LiveTV may cease
distributing such Programming to the affected Approved Aircraft pursuant
to Article 11.4, only for the time necessary, as reasonably determined by
LiveTV, to prevent such violation of Law from continuing. If a bona fide
dispute exists between LiveTV and JetBlue, as to whether a violation of
any Law has occurred or shall occur, LiveTV shall not cease distributing
such Programming unless LiveTV has received either (i) notice of and
delivers a copy (if the action is in written form) to JetBlue of an
Indictment (as defined below), or a threat of any such Indictment, from
any entity with jurisdiction or claiming to have jurisdiction to enforce
such Law, alleging or stating that the provision of such LiveTV Service(s)
is or could be a violation of such Law, or (ii) an opinion letter to
LiveTV from outside counsel to
Agreement between JetBlue and LiveTV 20
December 17, 2001
LiveTV stating that, in its opinion, the distribution of such LiveTV
Service(s) appears to be or could be found to be in violation of any Law
that is currently being, is threatened to be, or there exists a material
likelihood will be, enforced. As used herein, "Indictment" shall be
defined as an indictment, summons, cease and desist order or other similar
orders or filings.
4.5 Access to Programming
In the event that LiveTV fails to provide programming services pursuant to
the terms of this Agreement, then LiveTV shall, on a best effort basis,
assist JetBlue in negotiation(s) to secure programming equivalent to that
previously supplied by LiveTV to JetBlue hereunder.
ARTICLE 5. AVAILABILITY GUARANTEE
5.1 GUARANTEE.
LiveTV guarantees a Fleet based System Availability as defined
within Annex G (herein referred to as "Availability Guarantee") commencing
on the first (1st) day of the fourth (4th) month following issuance of the
STC on the first Approved Aircraft as follows: [****] percent ([****]%)
during the 4 month, [****] percent ([****]%) during the 5 month and
[****] percent ([****]%) thereafter continuing for the Term of this
Agreement.
LiveTV shall be responsible for ensuring the Fleet meets the
Availability Guarantee as defined in this article, in full compliance with
FAA and other applicable regulations.
5.2 CALCULATION METHOD AND EXCLUSIONS
The Availability Guarantee calculation and Exclusions are set
forth in Annex G.
5.3 REMEDY
In the event LiveTV fails to meet the Availability Guarantee,
1) LiveTV and JetBlue will investigate causes and solutions to
Availability deficiencies 2) JetBlue will implement any operational
procedures that improve System Availability while not materially impacting
functionality of the System 3) LiveTV will, at no charge, install
modifications to improve System Availability.
ARTICLE 6. LIVETV PROMOTION AND ADVERTISING
6.1 LIVETV EXPOSURE.
Each party to this Agreement shall provide to the other for
review, and each shall have the right to approve or reject, all
advertising, promotional and other materials directly relating to (i) the
LiveTV Services, or (ii) the DBS satellite service provider, whether
designed
Agreement between JetBlue and LiveTV 21
December 17, 2001
--------------------------
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
for use with potential customers and customers, or with passengers of
Approved Aircraft. Each party shall use commercially reasonable efforts
to provide such approval or rejection within twenty-five (25) days of
submission of the materials by the other party.
Agreement between JetBlue and LiveTV 22
December 17, 2001
6.2 LIVETV COMMERCIALS.
JetBlue shall ensure that, prior to each passenger viewing the
LiveTV Services on board a Qualified Flight, during the term of this
Agreement, a one (1) minute commercial highlighting the Programming
available and including the statement "Programming brought to you by
DIRECTV(R) and providing a toll free number for additional information
regarding DIRECTV(R) Services, shall air on such Qualified Flight.
6.3 PUBLICITY MATERIALS.
The parties agree to submit to the other, any advertising,
sales promotion and other publicity materials relating to the activities
of JetBlue, pursuant to this Agreement in which LiveTV or the DBS
satellite service provider e.g. DIRECTV(R)s name or names are mentioned,
or language, signs, markings or symbols are used from which the connection
of DIRECTV(R)'s name or names may, be reasonably inferred or implied. The
parties shall use commercially reasonable efforts to provide such approval
or rejection within twenty-five (25) days of submission of the materials.
6.4 PROMOTION AND IN-FLIGHT PUBLICATION
6.4.1 JetBlue will provide three (3) pages in the In-Flight
publication of JetBlue, if any, on a monthly basis, for
promotion of the LiveTV-service and content providers,
at no cost to LiveTV.
6.4.2 JetBlue shall cooperate with LiveTV in promoting the use
of the System on Aircraft operated by the JetBlue, and
the parties shall implement the jointly to be agreed
upon marketing programs.
6.4.3 Additional Marketing By LiveTV. LiveTV marketing
personnel shall be allowed by JetBlue, subject to
approval by JetBlue, which approval shall not be
unreasonably withheld, to:
6.4.3.1 Conduct marketing and usage surveys of JetBlue's
passengers;
6.4.3.2 Travel on-board the Aircraft to introduce
passengers to the LiveTV Service and provide
instructions to passengers in its use; and
6.4.3.3 Interview and solicit JetBlue passengers at
JetBlue's gate areas and otherwise undertake
marketing and promotions at such areas, subject
to applicable airport rules, regulations, and
consent of JetBlue.
Agreement between JetBlue and LiveTV 23
December 17, 2001
6.5 USE OF TRADEMARKS.
For purposes of marketing the LiveTV Service only, JetBlue
grants to LiveTV the exclusive right to use JetBlue's trademarks and
service marks in use from time to time with respect to in-flight
entertainment systems aboard the Aircraft and LiveTV grants to JetBlue the
non-exclusive right to use LiveTV's trademarks and service marks in use
from time to time with respect to the LiveTV Service and System. The right
of a party ("Licensee") to use such trademarks and service marks of the
other party ("Licensed Marks") shall be subject to the following
restrictions and conditions:
6.5.1 Licensee may use the Licensed Marks only for purposes of
(i) making known that LiveTV Service is available on
board the Aircraft of JetBlue, and (ii) as reasonably
appropriate in instructional materials for use of the
System on board the Aircraft;
6.5.2 Whenever the Licensed Marks are used in advertising,
promotional or other materials, such materials shall
identify the Licensed Marks as being owned by the other
party ("Licensor");
6.5.3 Prior to using the Licensed Marks in any published or
otherwise publicly distributed advertising, promotional
or other materials, Licensee shall submit copy for such
materials to the Licensor for its approval, which
approval shall not be unreasonably withheld. In the
event Licensor has not responded within ten (10)
business days of submission of the copy, Licensor shall
be deemed to have approved of the copy; and
6.5.4 Notwithstanding any other provision of the Agreement,
the Licensee shall not otherwise use the Licensed Marks
in any manner, which ▇▇▇▇▇ the reputation for quality
associated with the Licensed Marks.
ARTICLE 7. PRICES AND CHARGES
7.1.1 SERVICE CHARGE PAYMENTS.
For all approved Aircraft, JetBlue shall pay
LiveTV a service charge, less the applicable
quantity discount under 7.1.2, of $[****] US
per passenger position (based on 162
positions per aircraft) per Flight Segment
per Approved Aircraft, with a minimum
monthly payment equal to $[****] per
Approved Aircraft.
7.1.2 DISCOUNT FOR INCREASED AIRCRAFT QUANTITIES IN
CONSIDERATION FOR INCREASING THE NUMBER OF APPROVED SYSTEMS
ORDERED, LIVETV SHALL PROVIDE JETBLUE A MONTHLY DISCOUNT BASED
ON THE SCHEDULE SHOWN IN ANNEX A-1. THIS DISCOUNT SHALL BE IN
THE FORM OF A CREDIT ON THE MONTHLY INVOICE FOR SERVICE
CHARGES.
Agreement between JetBlue and LiveTV 24
December 17, 2001
--------------------------
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
7.2 GROSS REVENUE
This paragraph has been deleted.
7.3 ▇▇▇▇▇▇▇▇.
This paragraph has been deleted.
7.4 SERVICE CHARGE ADJUSTMENT
7.4.l Adjustment of Service Charge: The Service Charge shall
increase on January 1st, of each year during the Initial Term
or any extensions thereof, by a percentage equal to the
percentage increase in the Consumer Price Index for Urban
Consumers, All Items, Unadjusted 12 months ended (CPI-U) (the
"CPI") from January of the preceding year. In no event shall
the percentage change in the CPI cause a reduction in the
Service Charge.
7.5 TAXES, CUSTOMS AND DUTIES.
Any and all taxes, customs or duty charges levied on the use
or delivery of the System or materials, or upon services rendered
hereunder, shall be paid by JetBlue (excluding taxes based upon LiveTV's
net income and taxes payable with respect to the distribution of
Programming on Qualified Flights). In the event that LiveTV pays or
otherwise discharges any such taxes, customs or duty charges that are the
responsibility of JetBlue, then JetBlue shall reimburse LiveTV for such
amount paid.
7.6 LOSS OF AIRCRAFT.
If there is a total loss of any Aircraft listed in Annex "A,"
the number of Aircraft in the Fleet will be reduced by the Aircraft so
lost, provided that the stipulated loss value of the Approved System
thereon as set forth in Article 10.4 hereof is paid to LiveTV.
ARTICLE 8. REPORTING, INVOICING, AND PAYMENT
8.1 REPORTS
8.1.1 REPORTS TO LIVETV. JetBlue agrees to report the number
of Approved Aircraft in service, the actual number of
seats in service on each Approved Aircraft and the
number of LiveTV Flight Segments completed during each
month no later than thirty (30) days following the last
day of
Agreement between JetBlue and LiveTV 25
December 17, 2001
each month; this is known as the "LiveTV Flight Report".
JetBlue will also report their Advertising Costs, if
any, related to advertisements placed each month; this
is known as the "JetBlue Advertisement Cost Report".
JetBlue shall maintain these records for five years
thereafter.
8.1.2 REPORTS TO JETBLUE. Within thirty (30) days after the
end of each calendar month, LiveTV shall submit to the
JetBlue a report setting forth the Advertising Revenues,
Advertising Costs, and Advertising Gross Margins for
such calendar month. LiveTV will also, within thirty
(30) days following each month, report System
Availability, known as the "System Availability Report".
8.2 INVOICING.
LiveTV will deliver an Activity Statement to JetBlue on the
1st business day of each calendar month. The Statement will itemize the
receipts to be distributed between LiveTV and JetBlue and the payments to
be made to LiveTV in the form of monthly Service Charges. The Statement
will be accompanied by an invoice, credit or payment.
8.3 INITIAL INVOICE DATE.
The invoicing for Service Charges for each individual Aircraft
shall commence upon such Aircraft becoming on Approved Aircraft.
8.4 INVOICE ADDRESS.
LiveTV will address all invoices as follows:
JetBlue Airways Corporation
▇▇-▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
8.5 DISPUTED INVOICES.
In the event an invoice, issued pursuant to this Agreement, is
disputed in good faith by one party, then said party agrees to pay the
invoice, less the amount in dispute, and the parties will work together in
good faith to resolve their differences with regard to the invoiced amount
not paid. In the event the parties cannot resolve the dispute within 30
days, the dispute will be submitted to arbitration before a single
arbitrator under the rules of the American Arbitration Association.
8.6 PAYMENT.
All invoices shall be net thirty (30) days. All payments under
this Agreement shall be made in United States currency, and be made by
check or Electronic Funds Transfer:
To JetBlue:
JetBlue Airways Corporation
Agreement between JetBlue and LiveTV 26
December 17, 2001
▇▇-▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
To LiveTV:
LiveTV, LLC
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Or to such other addresses as directed in writing from time to
time.
8.7 FINANCE CHARGE
Should JetBlue or LiveTV fail to pay, within sixty (60) days,
charges invoiced hereunder, the other party may impose a monthly finance
charge on such late payment at the rate of [****] percent ([****] [****]%)
for each such unpaid charge ([****] percent [[****]%] annual rate but
not in excess of the lawful maximum), from the sixty-first (61st) day
until said payment is received. If at any time JetBlue's account is
subject to a finance charge hereunder, LiveTV, in addition to any other
remedies, reserves the right to stop all further shipments to JetBlue.
Late payment shall constitute a material breach and constitute a basis for
termination under Article 11.1 hereof.
8.8 REPORTING REQUIREMENTS.
The reporting and payment requirements specified herein are a
material part of this Agreement and either party shall have the right to
suspend the supply of Programming or Product Support, or terminate this
Agreement pursuant to Article 11.1, if either party fails to meet its
reporting or payment responsibilities.
8.9 RECORDS AND AUDITS.
JetBlue and LiveTV shall maintain accurate records of all
matters that relate to their respective obligations under this Agreement
in accordance with generally accepted accounting principles and practices
uniformly and consistently applied in a format that will permit audit.
Both parties shall retain such records throughout the term of this
Agreement and
Agreement between JetBlue and LiveTV 27
December 17, 2001
--------------------------
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
for one (1) year thereafter. To the extent that the records may be
relevant in determining whether both parties are complying with its
obligations hereunder, both parties and their authorized representatives
shall have access to the records for inspection and audit at all
reasonable times during normal business hours upon five (5) business days
written notice throughout the Term and for one (1) year thereafter,
provided such inspection and audit shall take place no more frequently
than once per year. Any such review and audit shall be at the sole cost
and expense of the auditing party, except in the case where an
underpayment of five percent (5%) or more in monthly payments otherwise
owed pursuant to this Agreement is discovered, in which case the audited
party shall reimburse the other party for those costs actually incurred in
such review and audit.
ARTICLE 9. DELIVERY, RETURN AND TRANSPORTATION RESPONSIBILITIES
9.1 DELIVERY.
LiveTV shall deliver all Products to JetBlue in accordance
with the shipment dates specified on Annex "A" to this Agreement. JetBlue
shall notify LiveTV of the specific location where the Systems are to be
shipped at least ninety (90) days prior to the scheduled delivery date.
9.1.1 SCHEDULE MODIFICATIONS. Should JetBlue alter the Product
shipping schedule from the mutually agreed shipping
dates in this Agreement, JetBlue shall be responsible
for additional costs incurred by LiveTV in meeting the
revised schedule.
9.1.2 DEFAULT. In the event of default by JetBlue under this
Agreement, LiveTV may decline, at its sole discretion,
to make further shipments under any and/or all other
purchase orders placed under this Agreement. If LiveTV
elects to continue making such shipments, such
continuation shall not constitute a waiver of such
default, nor shall such continuation in any way limit
LiveTV's legal remedies for such default.
9.2 PACKAGING.
Products delivered by one party to the other shall be suitably
packed for shipment in accordance with appropriate ATA packaging standards
and good commercial practice. In the event that LiveTV furnishes reusable
containers for any LRU spares, and then the parties will utilize such
containers for all subsequent shipments of said spares.
9.3 JETBLUE'S SHIPPING ADDRESS.
LiveTV shall ship Products to JetBlue at the following address:
JetBlue Airways
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Agreement between JetBlue and LiveTV 28
December 17, 2001
or
JetBlue Airways
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ International Airport, Terminal 6
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Or to such other addresses as directed in writing by JetBlue to LiveTV
from time to time.
ARTICLE 10. SYSTEM OWNERSHIP OF AND RESPONSIBILITY FOR MATERIAL
10.1 SYSTEM OWNERSHIP.
The Products shall at all times remain the property of LiveTV,
and LiveTV shall be permitted to display notice of ownership on such
Products. LiveTV, in its sole discretion, may transfer ownership of the
Systems or Products to a leasing company or other financial institution
subject to the provisions of this Agreement. LiveTV shall notify JetBlue
of any such transfers in a timely manor. JetBlue shall not acquire any
ownership interest in any Product or spare unit supplied by LiveTV under
this Agreement, except for the Provision Kits as provided per this
Agreement.
10.2 RIGHT AND TITLE
LiveTV shall at all times retain the sole and exclusive right
and title in and to all STCs and modifications to STCs or similar rights
or authorizations, patents, know-how, copyrights, information and other
intellectual and industrial property rights embodied in or relating to the
System or live television reception service.
10.2.1 PRESERVATION AND PROTECTION. JetBlue shall cooperate
with LiveTV in filing any required statements or other
instruments, and in the taking of any and all other
actions, which LiveTV may deem necessary or desirable
under the applicable law of any jurisdiction in order
to preserve and protect LiveTV's title and right to any
such property.
10.2.2 INVENTORY REQUIREMENTS. Additionally, JetBlue shall
conduct inventories of LiveTV supplied Products, as may
reasonably be requested by LiveTV, in order to allow
LiveTV to comply with generally accepted accounting
principles.
10.3 RESPONSIBILITY FOR SYSTEMS/SPARES.
JetBlue shall be responsible, to the extent negligent, for any
and all Product supplied under this Agreement from the time of delivery by
LiveTV until such Product is returned to LiveTV.
10.3.1 DAMAGE/LOSS. In the event any Products or any part
thereof is lost, stolen, damaged, or destroyed
(excluding a total loss of an Aircraft) while in the
custody of JetBlue, LiveTV shall repair or replace,
whichever
Agreement between JetBlue and LiveTV 29
December 17, 2001
is less costly, the lost, stolen, damaged or destroyed
Product. JetBlue shall then pay LiveTV, within sixty
(60) days, for the repair or replacement charges,
unless the loss, theft, damage or destruction is due to
the negligence of LiveTV, to normal wear and tear or to
passenger damage.
10.3.2 TOTAL LOSS. JetBlue shall reimburse LiveTV for the
total loss of a System pursuant to Article 7.7, within
one hundred twenty (120) days of the date of any such
loss.
10.4 INSURANCE.
JetBlue shall insure at its sole cost, with an insurer
reasonably acceptable to LiveTV, the Systems against loss or destruction
in the amount of [****] Dollars ($[****]) per system per Aircraft
hereunder naming LiveTV as an additional insured. JetBlue shall
advise LiveTV at least one month prior to installation of a System that
such coverage has been put in force and shall provide a certificate of
insurance as evidence of such coverage being in force. The insurer shall
provide notice to LiveTV of any modification or cancellation of the
insurance policy required hereunder. The parties hereto agree that it
would be very difficult to establish an exact value for the worth of each
system hereunder at the time of any such loss or destruction, and,
accordingly, establish the above amounts as the Stipulated Loss Value for
each such system. JetBlue will provide LiveTV a blanket policy endorsement
and certificate for all installed Systems.
10.5. LIENS.
JetBlue shall not pledge, assign, hypothecate, encumber or
grant any security interest in, or allow any liens, charges, encumbrances
or legal processes to be imposed or levied on, any Products or other
materials furnished hereunder other than, liens arising out of the
operation of law. If any such liens arise, JetBlue will discharge within
sixty (60) days. Provision Kits, once title for said kits has passed to
JetBlue, are excluded.
10.6 IDENTIFICATION OF SUPPLIER.
If practical, JetBlue shall identify LiveTV as the supplier of
Products and services hereunder by an appropriate legend or credit in
advertisements, printed programs or similar media, which refer to the use
of the LiveTV System or services.
ARTICLE 11. TERMINATION AND EXCUSABLE DELAY
11.1 TERMINATION BY EITHER PARTY.
In the event that either party fails to perform any material
obligations hereunder, unless such failure is excused under any provisions
of this Agreement, then the other party may terminate this Agreement upon
ninety (90) days prior written notice, in the event:
Agreement between JetBlue and LiveTV 30
December 17, 2001
--------------------------
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
(i) The other party is in material default of its material
obligations under this Agreement (with such termination
right to be in addition to, and not in lieu of, any
other rights and remedies provided by law or this
Agreement). Any notice of termination shall specify in
reasonable detail the deficiency in performance giving
rise to the termination. However, such termination shall
not be effective if the defaulting party has cured such
default prior to the effective date of termination.; or
(ii) The other party becomes insolvent or institutes or
permits to be instituted against it any proceedings
seeking receivership, trusteeship, bankruptcy,
reorganization, assignment for the benefit of creditors,
or other proceedings under Title 11 of the United States
Code or as provided by any other insolvency law, state
or federal (a "Bankruptcy Proceeding"), provided,
however, in the event of institution of any involuntary
Bankruptcy Proceeding, a period of at least sixty (60)
days from the institution thereof has elapsed and the
involuntary Bankruptcy Proceeding has not been stayed or
dismissed within such sixty (60) days period.
11.2 CONSEQUENCES OF TERMINATION OR EXPIRATION
11.2.1 Upon the expiration or earlier termination of this
Agreement, each party shall promptly return to the
other party all Confidential Information of the other
party, and all copies, however obtained, and shall
continue to hold such Confidential Information in
confidence.
11.2.2 Upon the expiration or earlier termination of this
Agreement, JetBlue shall promptly return to LiveTV the
Systems, Products and all other components and parts of
every type and description in which LiveTV holds title,
in good condition, ordinary wear, tear and defective
units excepted.
11.2.3 Upon the expiration of this Agreement, each party shall
promptly pay to the other all amounts due under this
Agreement.
11.2.4 In the event JetBlue terminates this Agreement as a
result of default of LiveTV pursuant to Paragraph 11.1,
JetBlue shall promptly pay to LiveTV all amounts due to
LiveTV under this Agreement, up to the date JetBlue
returns to LiveTV the Systems, Products and all other
components and parts in which LiveTV holds title, in
good condition, ordinary wear, tear and defective units
excepted, and LiveTV shall pay the costs associated
with the return of the Systems, Products, components
and parts. LiveTV shall also pay JetBlue all amounts
due under this Agreement up to the date JetBlue returns
componentsto LiveTV the Systems, Products and all other
and parts in which LiveTV holds title, in good
condition, ordinary wear, tear and defective units
excepted. LiveTV shall remove the LiveTV System
components identified in Annex "B" at no cost to
JetBlue. Said removal includes LiveTV's responsibility
to return the aircraft to a condition sufficient to
Agreement between JetBlue and LiveTV 31
December 17, 2001
satisfy airworthiness, reasonable aesthetic requirements
and reasonable requirements of applicable aircraft
lessors.
11.2.5 In the event LiveTV terminates this Agreement as a
result of default of JetBlue pursuant to Paragraph
11.1, JetBlue shall promptly pay to LiveTV:
(i) all amounts due and/or to be received by LiveTV
under this Agreement as to each installed
Aircraft, which would have been received by LiveTV
from JetBlue had the Agreement remained in full
force and effect up to the expiration date of its
Term;
(ii) all costs incurred, including but not limited to,
any costs and cancellation charges of vendors,
which are by LiveTV reasonably allocable to
uncompleted and/or uninstalled Systems, Products,
components and parts, including without
limitation, un-amortized non-recurring engineering
costs, determined in accordance with the
accounting practices consistently followed by
LiveTV; and
(iii) all costs associated with the return of the
Systems, Products, components and parts.
Amounts to be paid to LiveTV, pursuant to this
paragraph, shall be known as the "Termination Charge".
11.2.6 [****]
11.3 EARLY REMOVAL OF AIRCRAFT FROM JETBLUE FLEET.
11.3.1 If any of the Approved Aircraft identified in Annex "A"
is removed from the Fleet prior to the Initial Term of
this agreement, JetBlue shall either;
(i) Pay to LiveTV a Termination Charge equal to the
amounts set forth in Article 11.2.5, for each
affected Aircraft for the remaining Term of such
affected aircraft under this Agreement;
(ii) Promptly transfer a System from Aircraft listed on
Annex "A" to other Aircraft of the same type and
configuration that are owned or leased by JetBlue,
with all related expenses and installation charges
to be paid by JetBlue; or
(iii) Promptly transfer the System to any new owner,
lessee or lesser, provided that LiveTV concludes
an Agreement with such new owner, lessee or lessor
for said System, on terms acceptable to LiveTV in
its sole discretion, in which instance, JetBlue
shall be relieved of further liability to LiveTV
for the System.
Agreement between JetBlue and LiveTV 32
December 17, 2001
--------------------------
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
11.3.2 If any of the Additional Aircraft, above the
original thirty-two (32) Approved Aircraft in the
Fleet, is removed from the Fleet during the Term
of this agreement, JetBlue shall either:
Agreement between JetBlue and LiveTV 33
December 17, 2001
(i) Promptly transfer the System from such Additional
Aircraft to other Aircraft of the same type and
configuration that are owned or leased by JetBlue,
with all related expenses and charges of removal
and installation to be paid by JetBlue;
(ii) On not more than four (4) Additional Aircraft,
transfer the System from such Additional Aircraft
to other Aircraft of the same type and
configuration that are owned or leased by JetBlue
within nine (9) months of such removal, with all
related expenses and charges of removal and
installation to be paid by JetBlue, provided
however, that JetBlue shall continue to pay to
LiveTV the minimum Service Charge on such
Additional Aircraft in effect during the period
such System remains uninstalled; or
(iii) Promptly transfer the System to any new owner,
lessee or lessor, provided that LiveTV concludes
an Agreement with such new owner, lessee or lessor
for said System, on terms acceptable to LiveTV in
its sole discretion, in which instance, JetBlue
shall be relieved of further liability to LiveTV
for the System.
11.4 EXCUSABLE DELAY.
LiveTV shall not be liable for failure to perform its
obligations under this Agreement when caused by acts of God, acts of the
common enemy, war or military activity, insurrection or sabotage, the
elements, earthquakes, floods, fires, explosions or other catastrophes,
severe weather, accidents, epidemics or quarantine restrictions, acts of
local or national government or public agencies, riots, labor disputes or
shortages, lockouts (other than by LiveTV itself), delays of a supplier of
LiveTV, or other causes beyond the reasonable control of and without fault
or negligence of LiveTV. If a strike, industrial disturbance, or work
stoppage affects the ability of LiveTV to fulfill its obligations
hereunder, then LiveTV will exert its best efforts to fulfill its
obligations through the use of management personnel, where practical, or
any other reasonable means available to LiveTV. In the event of any such
delay, the date for shipment shall be deferred for a period equal to the
time lost by reason of the delay. If a shipment is delayed as a result of
any action or in action of JetBlue, LiveTV may invoice JetBlue for the
Products as of the scheduled shipment date and may charge JetBlue for the
warehousing and other expenses incurred because of the delay. In the event
of any such delay, the date for shipment shall be deferred for a period
equal to the time lost by reason of the delay.
11.4.1 INVOICING. During any period of excusable delay, LiveTV
shall proportionately adjust its invoicing for the
Service Charges to delete any affected Aircraft, or
suspend its invoicing for the monthly Service Charges
should all Aircraft be affected.
11.4.2 TERMINATION OF FLEET. In the event of excusable delays
affecting a minimum of (i) thirty percent (30%) of the
Fleet or (ii) five (5) Approved Aircraft (whichever is
a larger number of Approved Aircraft) for a
Agreement between JetBlue and LiveTV 34
December 17, 2001
minimum of six (6) cumulative months per Approved
Aircraft out of a rolling twenty four (24) month period
for each of the affected Aircraft, JetBlue may terminate
this Agreement for all Aircraft in the Fleet.
11.4.3 RESUMPTION. LiveTV and JetBlue agree promptly upon the
removal of the cause or causes of delay under this
Article 11.4, to resume full performance of their
obligations under this Agreement subject to the
termination rights in Article 11.1.
11.4.4 MONIES DUE. The party's obligation to pay all invoices
to each other shall survive any termination or
expiration of this Agreement, and termination of this
Agreement shall be without prejudice to any other
remedies the parties may have hereunder or under
applicable law. Upon termination of this Agreement, any
monies otherwise due and owing to a party shall be
first offset against any indebtedness whatsoever owing
that party.
ARTICLE 12. LIMITATION OF LIABILITY
Notwithstanding anything to the contrary contained in this
agreement, in no event shall either party be liable for any incidental or
consequential damages of the other party, whether foreseeable or not and
regardless of the form, legal theory or basis of recovery of any such
claim.
ARTICLE 13. INTELLECTUAL PROPERTY INDEMNIFICATION
13.1 CLAIMS OF DIRECT PATENT INFRINGEMENT.
Subject to the provisions of Articles 13.2, 13.3, 13.4, 13.5,
and 13.6 hereof, to the best of LiveTV's knowledge, the Products when and
as manufactured and leased by LiveTV to JetBlue shall be free of any
rightful third party claim of direct infringement by such Product.
13.2 INDEMNIFICATION BY LIVETV.
LiveTV hereby agrees, at its own expense, that it will defend
any suit alleging direct infringement instituted against JetBlue (but not
subsidiaries or customers of JetBlue), and indemnify JetBlue against any
award of damages and costs for direct infringement (including reasonable
attorney's fees) made against JetBlue by a court of last resort insofar as
the award of damages is based on a final determination that the Products
as and when furnished by LiveTV to JetBlue hereunder directly infringed
any patent, trademark or copyright of the United States. Indemnification
of costs under this provision shall extend only to actual costs assessed.
This indemnity shall not apply to Products made by LiveTV or modified by
Agreement between JetBlue and LiveTV 35
December 17, 2001
LiveTV in accordance with JetBlue' specifications. This indemnity is
subject to Articles 13.2, 13.3, 13.4, 13.5, and 13.6 hereof.
13.3 CONDITIONS UNDER WHICH INDEMNIFICATION APPLIES.
LiveTV's obligations to indemnify JetBlue as listed in Article
13.2 above, are conditioned on the following: (i) LiveTV shall be notified
promptly in writing by JetBlue of any notice of such claim but in no event
later than fifteen (15) days after JetBlue shall have received any notice
thereof; (ii) LiveTV shall, at its option, have sole control of the
defense of any action on such claim and all negotiations for its
settlement or compromise; (iii) JetBlue shall fully cooperate with LiveTV
in the defense and all related settlement negotiations; and/or (iv) should
the Product become or in LiveTV's opinion be likely to become the subject
of such a claim of direct infringement, then JetBlue shall permit LiveTV,
at its option and expense, (1) to procure for JetBlue the right to
continue using the Product, (2) to replace or to modify the same so that
it becomes non-infringing, maintaining the same or equivalent
functionality or (3) to remove the Product relieve JetBlue of further
payments under this agreement, and pay the costs of removal/restoration
and transportation back to LiveTV.
13.4 EXCLUSIONS.
Notwithstanding Articles 13.1, 13.2, and 13.3 above, LiveTV,
shall have no liability to JetBlue if any claim of patent or copyright
infringement is based upon or arises out of: (i) alterations by JetBlue or
the customer of the Products furnished by LiveTV, (ii) failure of JetBlue
to use updated Products provided by LiveTV for avoiding infringement;
(iii) use of the Products furnished by LiveTV in combination with
apparatus or software not furnished by LiveTV, (iv) use of the Products
furnished by LiveTV in any manner for which the same were neither designed
nor contemplated; or (v) a patent, trademark or copyright in which JetBlue
or an affiliate or subsidiary of JetBlue has a direct or indirect interest
by license or otherwise.
13.5 DISCLAIMER OF WARRANTY AGAINST INFRINGEMENT.
THE WARRANTIES SET FORTH IN THIS ARTICLE 13 ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO ANY CLAIM OF
INFRINGEMENT. ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN
SECTION 2-312(3) OF THE UNIFORM COMMERCIAL CODE AND/OR IN ANY OTHER
COMPARABLE STATE STATUTE IS EXPRESSLY DISCLAIMED.
13.6 LIMITATION OF LIABILITY FOR INFRINGEMENT CLAIMS.
The provisions of Articles 13.1 through 13.5 above state the
entire liability of LiveTV for any claim arising from, or based upon,
patent, trademark or copyright infringement.
Agreement between JetBlue and LiveTV 36
December 17, 2001
13.7 INDEMNIFICATION BY JETBLUE.
JETBLUE AGREES THAT IT WILL DEFEND, INDEMNIFY AND HOLD
HARMLESS LIVETV (AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS) IN THE
SAME MANNER AND TO THE SAME EXTENT DESCRIBED IN ARTICLES 13.2 AND 13.3
HEREOF IN THE EVENT OF ANY SUIT OR CLAIM BROUGHT AGAINST LIVETV (AND/OR
ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS) IN WHICH THE ALLEGED
INFRINGEMENT ARISES FROM: (I) GOODS MANUFACTURED TO JETBLUE DESIGN, OR IN
ACCORDANCE WITH JETBLUE SPECIFICATIONS, OR (II) ALTERATION(S) OF THE
PRODUCT(S) BY JETBLUE OR FROM THE COMBINATION OF THE PRODUCT(S) WITH
SYSTEM, SOFTWARE OR PRODUCTS NOT SUPPLIED BY LIVETV.
ARTICLE 14. CONFIDENTIALITY
JetBlue and LiveTV acknowledge and agree that the information
each has provided or shall provide in connection with the negotiation of
and performance of this Agreement has been provided in confidence, and
shall remain confidential and proprietary to the party supplying such
information (the "Confidential Information"). Each party agrees that they
have not and will not reveal the same to any third party or use the same
for any purpose other than performing its obligations hereunder or as
otherwise permitted hereunder except: (i) if the Confidential Information
is in the public domain at the time of disclosure; (ii) at the written
direction of the other party; (iii) to the extent the Confidential
Information has been acquired by the disclosing party prior to the time of
disclosure by means not in violation of this Agreement or any law which
was known to the disclosing party or which the disclosing party should
have known with reasonable care, (iv) to the extent necessary to comply
with the law or valid order of a court of competent jurisdiction, in which
event the disclosing party shall, if permitted by law, so notify the other
party as promptly as practicable and shall, upon request of the
non-disclosing party at the expense of the non-disclosing party, obtain a
protective order with respect to such Confidential Information; and (v) as
part of its normal reporting or review procedure to its parent company,
its auditors and its attorneys, provided that such parent company,
auditors and attorneys agree to be bound by the provisions of this Article
14. The parties expressly acknowledge and agree that the LiveTV Technical
Specification shall constitute Confidential Information, is the sole
property of LiveTV regardless of the manner in which such Technical
Standards are developed. No Confidential Information of this type or any
other shall be shared by JetBlue with any subcontractor or other component
manufacturer or provider or other party, unless and until such party
agrees to be bound by the provisions of this Article 14 and LiveTV
expressly approves the disclosure of such relevant Confidential
Information to such party. JetBlue shall remain responsible and liable for
the compliance by any such party with the provisions of this Article 14.
Agreement between JetBlue and LiveTV 37
December 17, 2001
ARTICLE 15. MISCELLANEOUS
15.1 NOTICES.
All notices and other communications required or authorized
hereunder shall be given in writing either by personal delivery, by means
of a bonded delivery service (such as FedEx or DHL), by registered or
certified express mail, or by telex or telegraph addressed to the other
party as follows:
To JetBlue:
JetBlue Airways Corporation
▇▇-▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
To LiveTV:
LiveTV, LLC
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇ ▇▇▇▇▇, President.
Or to such other addresses as directed in writing by one party
to the other from time to time.
The date upon which the addressee receives any such
communication shall be deemed to be the effective date thereof, provided
always that such communication is by means of a method authorized
hereunder. Facsimiles shall be effective only upon receipt of a copy by a
method authorized herein.
15.2 EXPORT ASSURANCES.
JetBlue represents and warrants to LiveTV that it shall not
export or re-export Products provided by LiveTV under this Agreement in
violation of U.S. export laws and regulations. JetBlue shall be solely
responsible for compliance with and for the obtaining of any required
export licenses.
If LiveTV discloses technology or software to JetBlue relative
to this Agreement, JetBlue hereby gives assurance to LiveTV that it will
not knowingly (unless it has obtained prior written authorization from the
U.S. Department of Commerce or is otherwise permitted by the U.S.
Department of Commerce Export Administration Regulations) re-export or
otherwise disclose, directly or indirectly, any technology or software
received from LiveTV, nor allow the direct product thereof to any
countries proscribed by Part 779.4 of the U.S. Department of Commerce
Export Administration Regulations or to any other country otherwise
proscribed by the U.S. Treasury Department.
JetBlue acknowledges that if it sells or leases aircraft
containing LiveTV Products
Agreement between JetBlue and LiveTV 38
December 17, 2001
provided by LiveTV under this Agreement to any country proscribed by the
U.S. Treasury Department or to any company located in a proscribed
country, LiveTV is prohibited from performing maintenance or repair on
that system so long as that system is owned or leased by the proscribed
country or by a company located in the proscribed country.
15.3 REPRESENTATIONS AND WARRANTIES.
Each of the parties represents and warrants that: it is a
corporation or Limited Liability Company, duly organized, validly existing
and in good standing under the laws of the state of its incorporation; it
has full power and authority to enter into the Agreement and perform its
obligations hereunder and has taken all action necessary to execute and
deliver this Agreement; this Agreement constitutes its valid and legally
binding obligation; and execution of the Agreement and performance of its
obligations hereunder does not and will not violate any law or result in a
material breach of or material default under the terms of any contract or
agreement by which such party is bound.
15.4 INDEMNIFICATION.
15.4.1 LiveTV hereby agrees to indemnify, protect and hold
JetBlue, its officers, agents or employees harmless
from and against all liabilities, claims, damages,
losses, costs and expenses (including reasonable
attorney and court expenses) for all injuries or death
of any person, damage to any property occurring,
directly or indirectly, from the operation or
installation of the system, unless resulting from the
gross negligence or willful misconduct of JetBlue.
15.4.2 Each party shall indemnify the other, its affiliates
and their respective employees, officers, directors,
agents and employees (collectively, "Indemnities") from
and against any fine, penalty, loss, cost, damage,
injury, claim expense or liability, including, without
limitation, any attorneys' fees (each, a "Liability")
arising out of, directly or indirectly, a breach of the
indemnifying party's obligations under this Agreement.
In addition, LiveTV shall indemnify and hold harmless
JetBlue and the JetBlue Indemnities from and against
any Liability arising from the content of any
Programming (including without limitation claims
relating to trademark, copyright, music, music
performance and other proprietary interests); provided,
however, LiveTV's obligation to indemnify JetBlue with
respect thereto is expressly limited to the same extent
of such indemnification provided to LiveTV pursuant to
its agreement with the DBS service provider.
Agreement between JetBlue and LiveTV 39
December 17, 2001
15.4.3 In the event of any claim or suit relating to any
matter for which one party has agreed to provide
indemnification under this Agreement, the indemnified
party shall promptly provide notice of such claim or
suit to the indemnifying party; provided, however, the
failure of the indemnified party to promptly notify the
indemnifying party thereof shall not relieve the
indemnifying party of its indemnification obligations
except to the extent the indemnifying party has been
materially prejudiced thereby. The indemnifying party
shall then have the option to control the conduct of
the claim or suit and the indemnified party shall
reasonably cooperate in the conduct of such claim or
suit at the expense of the indemnifying party. The
indemnified party may, if it wishes and at its expense,
retain separate counsel to participate in the claim or
suit, in which event the indemnifying party and its
counsel shall reasonably cooperate with the indemnified
party and such counsel. In no event, however, may there
be a settlement of any such claim or suit without the
written consent of the indemnifying party, which
consent shall not be unreasonably withheld or delayed.
The indemnifying party may settle any such claim or
suit without the consent of the indemnified party, but
only if the sole relief awarded are monetary damages.
15.5 DISCLAIMER.
LIVETV WILL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES OR FOR ANY LOSS OF USE, REVENUE OR PROFIT SUFFERED BY JETBLUE AS A
RESULT OF LIVETV SUPPLY OF OR FAILURE TO SUPPLY SYSTEMS, PROGRAMMING, OR
PRODUCT SUPPORT, NOR SHALL LIVETV'S LIABILITY FOR ANY CLAIMS OR DAMAGE
ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT EXCEED THE AMOUNT OF
SERVICE CHARGES PAID BY JETBLUE HEREUNDER.
15.6 ASSIGNMENTS.
This Agreement shall inure to the benefit of, and be binding
on, each of the parties hereto and their respective successors and
assignees; however, except as provided for below, it may not be assigned
in whole or in part by either party without prior written consent of the
other party, except that either party's interest shall be assignable
through merger, consolidation, reorganization, sale or transfer of
substantially all of its assets, as long as there is no essential change
in the application of the terms and conditions of this Agreement as they
affect the non-assigning party. Notwithstanding anything contained herein
to the contrary, the parties acknowledge and agree that LiveTV shall have
the right to assign its rights hereunder in a financing transaction with a
third party lender.
15.7 NO THIRD PARTY BENEFICIARIES.
The provisions of this Agreement are for the benefit of the
parties and not for any other person.
Agreement between JetBlue and LiveTV 40
December 17, 2001
15.8 GOVERNING LAW.
This Agreement shall be governed by and construed in
accordance with the laws of the State of California, U.S.A. applicable to
Contracts entered into and fully performed therein, except to the extent
that the parties respective rights are subject to mandatory local, state,
and federal laws and regulations.
15.9 MODIFICATIONS AND AMENDMENTS.
This Agreement contains the entire understanding of the
parties as to its subject matter and shall not be modified, except by an
instrument in writing duly executed by the parties to this Agreement.
15.10 SEVERABILITY.
If any provision of this Agreement is declared by a court of
competent jurisdiction to be invalid, illegal, or unenforceable, such
declaration shall not, in and of itself, nullify the remaining provisions
of this Agreement. The invalid, illegal, or unenforceable provision or
provisions shall be severed from the remaining provisions of this
Agreement, and the Agreement shall be enforceable as to the remaining
provisions, unless LiveTV, in its sole discretion, decides that such
declaration is contrary to the original intent of the parties, and/or the
economic effect of the original Agreement, in which event this Agreement
shall be voidable at the election of LiveTV. If any provision of this
Agreement is inapplicable to any circumstance, it shall nevertheless
remain applicable to all other circumstances.
15.11 WAIVER.
The failure of any party to insist upon strict performance of
any provision of this Agreement shall not be construed as a waiver of any
subsequent breach of the same or similar nature. All rights and remedies
reserved to either party shall be cumulative and shall not be in
limitation of any other right or remedy which such party may have at law
or in equity.
15.12 ENTIRE AGREEMENT, MODIFICATIONS AND ARTICLE HEADINGS.
This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter hereof and
supersedes all prior agreements, arrangements or understandings relating
to the subject matter hereof. This Agreement shall not be modified other
than in writing, signed by each of the parties hereto. The section
headings are for the convenience of the parties only and shall not be
given any legal effect or otherwise affect the interpretation of this
Agreement.
Agreement between JetBlue and LiveTV 41
December 17, 2001
15.13 NO PARTNERSHIP.
Nothing is this Agreement shall be construed to create an
agency, partnership or joint venture between the parties hereto, nor shall
any similar relationship be deemed to exist between them. Neither party
hereto shall represent itself to third parties as the agent, partner, or
joint venturer of the other.
15.14 ENGLISH LANGUAGE.
All information specified in any reports and on all
correspondence hereunder shall be submitted in the English language.
15.15 SURVIVAL OF RIGHTS OF PARTIES.
The expiration or termination of this Agreement shall not
release either party hereto from any liability, obligation or agreement
which, pursuant to any provision of this Agreement, is to survive or to be
performed after any such expiration or termination.
15.16 TRADEMARKS AND TRADE NAMES.
JetBlue does not by the operation of this Agreement or
otherwise acquire any right or interest in any trademark or trade name
owned, used or claimed now or in the future by LiveTV.
15.17 NO FURTHER OBLIGATIONS.
The parties acknowledge and agree that upon termination of
this Agreement, except with respect to those provisions of this Agreement,
which would survive pursuant to Article 15.15 above, neither party shall
have any further liability or obligation to the other party.
15.18 NOTIFICATION OF OFFER
In the event a third party undertakes discussions to purchase
a controlling interest in LiveTV and the disclosure of the existence of
such discussions is not restricted otherwise, LiveTV shall provide JetBlue
notice that such discussions have been undertaken. Except as specifically
set forth in this Section 15.18, LiveTV shall have no other obligations to
JetBlue regarding the subject matter hereof including but not limited to
any obligation to disclose the substance of the discussions or engage in
any good faith discussions or negotiations with JetBlue regarding a
possible transaction between LiveTV and JetBlue.
15.19 SIGNATURE OF THE PARTIES.
IN WITNESS WHEREOF, each of the parties hereto have caused
this Agreement to be signed by their duly authorized representatives.
For and on behalf of For and on behalf of
Agreement between JetBlue and LiveTV 42
December 17, 2001
JetBlue Airways Corporation LiveTV, LLC
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. Fricso
----------------------------------- --------------------------------
Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Printed Name: ▇▇▇▇▇▇▇ ▇. Frisco
------------------------- ----------------------
Title: VICE PRESIDENT Title: Vice President
-------------------------------- ------------------------------
Date: DECEMBER 19, 2001 Date: December 20, 2001
--------------------------------- -------------------------------
Witness: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ Witness: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------ ----------------------------
Agreement between JetBlue and LiveTV 43
December 17, 2001
ANNEX "A"
To the Agreement between
JetBlue Airways Corporation and LiveTV, LLC
LIST OF AIRCRAFT
Revision B
To the Agreement between
JetBlue Airways Corporation and LiveTV, LLC
-------------------------------------------------------------------------------------------------
Schedule
AIRCRAFT AIRCRAFT REGISTRATION/SERIAL Installation/Title Transfer Term of
Number Type NUMBER Date Agreement
-------------------------------------------------------------------------------------------------
1 A320 N5O3JB/1123 12/03/99 (installed) 96 months
-------------------------------------------------------------------------------------------------
2 A320 N5O4JB/1156 01/28/00 (installed) 96 months
-------------------------------------------------------------------------------------------------
3 A320 N5O5JB/1173 03/07/00 (installed) 96 months
-------------------------------------------------------------------------------------------------
4 A320 N5O6JB/1235 06/09/00 (installed) 96 months
-------------------------------------------------------------------------------------------------
5 A320 N5O7JB/1240 06/23/00 (installed) 96 months
-------------------------------------------------------------------------------------------------
6 A320 N508JB/1257 07/12/00 (installed) 96 months
-------------------------------------------------------------------------------------------------
7 A320 N5O9JB/1270 07/29/00 (installed) 96 months
-------------------------------------------------------------------------------------------------
8 A320 N51OJB/1280 08/11/00 (installed) 96 months
-------------------------------------------------------------------------------------------------
9 A320 N516JB/1302 10/06/00 (installed) 96 months
-------------------------------------------------------------------------------------------------
10 A320 N517JB/1327 11/08/00 (installed) 96 months
-------------------------------------------------------------------------------------------------
11 A320 N519JB/1398 02/09/01 (installed) 96 months
-------------------------------------------------------------------------------------------------
12 A320 N52OJB/1446 04/11/01 (installed) 96 months
-------------------------------------------------------------------------------------------------
13 A320 N521JB/1452 04/21/01 (installed) 96 months
-------------------------------------------------------------------------------------------------
14 A320 N522JB/1464 05/11/01 (installed) 96 months
-------------------------------------------------------------------------------------------------
15 A320 N523JB/1506 07/13/01 (installed) 96 months
-------------------------------------------------------------------------------------------------
Agreement between JetBlue and LiveTV 44
December 17, 2001
--------------------------------------------------------------------------------
16 A32O N524JB/1528 [****]/01 96 months
--------------------------------------------------------------------------------
17 A320 N526JB/TBD [****]/01 96 months
--------------------------------------------------------------------------------
18 A320 N527JB/TBD [****]/01 96 months
--------------------------------------------------------------------------------
19 A320 N528JB/TBD [****]/01 96 months
--------------------------------------------------------------------------------
20 A320 N529JB/TBD [****]/01 96 months
--------------------------------------------------------------------------------
21 A320 N531JB/TBD [****]/01 96 months
--------------------------------------------------------------------------------
22 A320 N533JB/TBD [****]/02 96 months
--------------------------------------------------------------------------------
23 A320 N534JB/TBD [****]/02 96 months
--------------------------------------------------------------------------------
24 A320 N535JB/TBD [****]/02 96 months
--------------------------------------------------------------------------------
25 A320 N536JB/TBD [****]/02 96 months
--------------------------------------------------------------------------------
26 A320 N537JB/TBD [****]/02 96 months
--------------------------------------------------------------------------------
27 A320 N542JB/TBD [****]/02 96 months
--------------------------------------------------------------------------------
28 A320 N543JB/TBD [****]/02 96 months
--------------------------------------------------------------------------------
29 A320 N544JB/TBD [****]/02 96 months
--------------------------------------------------------------------------------
30 A320 N546JB/TBD [****]/02 96 months
--------------------------------------------------------------------------------
31 A320 N547JB/TBD [****]/02 96 months
--------------------------------------------------------------------------------
32 A320 N548JB/TBD [****]/02 96 months
--------------------------------------------------------------------------------
33 A320 N552JB/TBD [****]/03 96 months
--------------------------------------------------------------------------------
34 A320 TBD [****]/03* 96 months
--------------------------------------------------------------------------------
35 A320 N553JB/TBD [****]/03 96 months
--------------------------------------------------------------------------------
36 A320 N554JB/TBD [****]/03 96 months
--------------------------------------------------------------------------------
37 A320 N556JB/TBD [****]/03 96 months
--------------------------------------------------------------------------------
38 A320 N558JB/TBD [****]/03 96 months
--------------------------------------------------------------------------------
39 A320 N559JB/TBD [****]/03 96 months
--------------------------------------------------------------------------------
Agreement between JetBlue and LiveTV 45
December 17, 2001
--------------------------
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
-------------------------------------------------------------------------------
40 A320 N561JB/TBD [****]/03 96 months
-------------------------------------------------------------------------------
41 A320 N562JB/TBD [****]/03 96 months
-------------------------------------------------------------------------------
42 A320 N563JB/TBD [****]/03 96 months
-------------------------------------------------------------------------------
43 A320 N564JB/TBD [****]/03 96 months
-------------------------------------------------------------------------------
44 A320 N565JB/TBD [****]/04 96 months
-------------------------------------------------------------------------------
45 A320 N568JB/TBD [****]/04 96 months
-------------------------------------------------------------------------------
46 A320 N569JB/TBD [****]/04 96 months
-------------------------------------------------------------------------------
47 A320 N571JB/TBD [****]/04 96 months
-------------------------------------------------------------------------------
48 A320 N579JB/TBD [****]/04 96 months
-------------------------------------------------------------------------------
49 A320 N58OJB/TBD [****]/04 96 months
-------------------------------------------------------------------------------
50 A320 N581JB/TBD [****]/04 96 months
-------------------------------------------------------------------------------
51 A320 N583JB/TBD [****]/04 96 months
-------------------------------------------------------------------------------
52 A320 N584JB/TBD [****]/04 96 months
-------------------------------------------------------------------------------
53 A320 N585JB/TBD [****]/04 96 months
-------------------------------------------------------------------------------
54 A320 N587JB/TBD Year 2005 Firm 96 months
-------------------------------------------------------------------------------
55 A320 N588JB/TBD Year 2005 Firm 96 months
-------------------------------------------------------------------------------
56 A320 N589JB/TBD Year 2005 Firm 96 months
-------------------------------------------------------------------------------
57 A320 N590JB/TBD Year 2005 Firm 96 months
-------------------------------------------------------------------------------
58 A320 N591JB/TBD Year 2005 Firm 96 months
-------------------------------------------------------------------------------
59 A320 N592JB/TBD Year 2005 Firm 96 months
-------------------------------------------------------------------------------
60 A320 N593JB/TBD Year 2005 Firm 96 months
-------------------------------------------------------------------------------
61 A320 N594JB/TBD Year 2005 Firm 96 months
-------------------------------------------------------------------------------
62 A320 N594JB/TBD Year 2005 Firm 96 months
-------------------------------------------------------------------------------
63 A320 TBD Year 2005 Firm 96 months
-------------------------------------------------------------------------------
Agreement between JetBlue and LiveTV 46
December 17, 2001
--------------------------
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
-------------------------------------------------------------------------------
64 A320 TBD Year 2005 Firm 96 months
-------------------------------------------------------------------------------
65 A320 TBD Year 2006 Firm 96 months
-------------------------------------------------------------------------------
66 A320 TBD Year 2006 Firm 96 months
-------------------------------------------------------------------------------
67 A320 TBD Year 2006 Firm 96 months
-------------------------------------------------------------------------------
68 A320 TBD Year 2006 Firm 96 months
-------------------------------------------------------------------------------
69 A320 TBD Year 2006 Firm 96 months
-------------------------------------------------------------------------------
70 A320 TBD Year 2007 Firm 96 months
-------------------------------------------------------------------------------
71 A320 TBD Year 2007 Firm 96 months
-------------------------------------------------------------------------------
72 A320 TBD Year 2007 Firm 96 months
-------------------------------------------------------------------------------
73 A320 TBD Year 2007 Firm 96 months
-------------------------------------------------------------------------------
Agreement between JetBlue and LiveTV 47
December 17, 2001
ANNEX "A-1"
To the Agreement between
JETBLUE AIRWAYS CORPORATION AND LIVETV, LLC
AIRCRAFT QUANTITY DISCOUNT
($ PER MONTH)
[****]
Agreement between JetBlue and LiveTV 48
December 17, 2001
--------------------------
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
ANNEX "B"
To the Agreement between
JetBlue Airways Corporation and LiveTV, LLC
Type of Aircraft: A320 System LTV2000
--------------------------------------------------------------------------------
Part Number Description Quantity Per Shipset
--------------------------------------------------------------------------------
186586-1 ANTENNA SYSTEM 1
--------------------------------------------------------------------------------
3040484-101 IF INTERFACE ASSEMBLY 1
--------------------------------------------------------------------------------
3042911-101 CABLE ASSY, COAX--GPS 1
--------------------------------------------------------------------------------
3042912-101 CABLE ASSY, COAX--GPS FEED THRU 1
--------------------------------------------------------------------------------
3042913-101 CABLE ASSY, COAX--ANTENNA 1
--------------------------------------------------------------------------------
3042914-101 CABLE ASSY, SERIAL--ACS/ANTENNA 1
--------------------------------------------------------------------------------
3042915-101 CABLE ASSY, POWER, OUTPUT--ACS 1
--------------------------------------------------------------------------------
3042918-101 CABLE ASSY, TWINAX--RSSI 1
--------------------------------------------------------------------------------
3042919-102 CABLE ASSY, COAX STRAIGHT/STRAIGHT 1
--------------------------------------------------------------------------------
3042919-103 CABLE ASSY, COAX STRAIGHT/STRAIGHT 1
--------------------------------------------------------------------------------
3040447-102 MODULE ASSY--MRM 2
--------------------------------------------------------------------------------
3042921-101 CABLE ASSY--MRM TRAY 2
--------------------------------------------------------------------------------
3042922-101 CABLE ASSY, POWER--RDA 1
--------------------------------------------------------------------------------
3042865-102 SEAT ELECTRONICS BOX ASSEMBLY 54
--------------------------------------------------------------------------------
3042849-101 RE DISTRIBUTION ASSEMBLY 1
--------------------------------------------------------------------------------
3042873-101 CABLE ASSY--SEAT TO SEAT 48
--------------------------------------------------------------------------------
3042875-101 CABLE ASSY--TERMINATOR 2
--------------------------------------------------------------------------------
177223-01 CREDIT CARD READER 162
--------------------------------------------------------------------------------
177357-01 LPCU, TOPMOUNT, LIVETV 162
--------------------------------------------------------------------------------
177222-01 LVDU, 5.6 INCH 162
--------------------------------------------------------------------------------
TBD VIDEO SERVER 1
--------------------------------------------------------------------------------
TBD VIDEO SERVER CABLING SET 1
--------------------------------------------------------------------------------
TBD WIRELESS AIRBORNE UNIT (WAU) 1
--------------------------------------------------------------------------------
TBD WADL RF ASSEMBLY 1
--------------------------------------------------------------------------------
TBD WADL ANTENNA 1
--------------------------------------------------------------------------------
TBD WADL CABLING SET 1
--------------------------------------------------------------------------------
Note: Above part numbers may change due to design changes.
Agreement between JetBlue and LiveTV 49
December 17, 2001
ANNEX "C"
To the Agreement between
JetBlue Airways Corporation and LiveTV, LLC
PROVISION KITS
Type of Aircraft: A320 System LTV2000
--------------------------------------------------------------------------------
Part Number Description Quantity Per Shipset
--------------------------------------------------------------------------------
98F5933000-5 INSTALLATION KIT 1
--------------------------------------------------------------------------------
3042916-101 CABLE ASSY, POWER, INPUT--ACS 1
--------------------------------------------------------------------------------
3042917-101 CABLE ASSY, SERIAL INTFC--ACS 1
--------------------------------------------------------------------------------
3042920-101 CABLE ASSY, COAX--IFI 1
--------------------------------------------------------------------------------
3042874-102 CABLE ASSY -- FIRST ZONE FEED 1
--------------------------------------------------------------------------------
3042895-103 CABLE ASSY -- ZONE FEED 1
--------------------------------------------------------------------------------
3042895-104 CABLE ASSY -- ZONE FEED 1
--------------------------------------------------------------------------------
172789-XX CABLE ASSY, VDU TPL 54
--------------------------------------------------------------------------------
177303-XX CABLE ASSY, SEB TO LPCU/RJM 54
--------------------------------------------------------------------------------
171334-10 MODULE, ELECTRICAL ▇▇▇▇, SINGLE
PIN, NO RESISTORS 162
--------------------------------------------------------------------------------
Note: Above part numbers may change due to design changes.
Agreement between JetBlue and LiveTV 50
December 17, 2001
ANNEX "D"
To the Agreement between
JetBlue Airways Corporation and LiveTV, LLC
SYSTEM REQUIREMENT SPECIFICATION (SRS)
FOR THE LIVETV
ENTERTAINMENT SYSTEM LTV2000
FOR
JETBLUE AIRWAYS CORPORATION
Revision 20 August 1999
DOCUMENT NO. 7003998
Agreement between JetBlue and LiveTV 51
December 17, 2001
[****]
--------------------------
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
ANNEX "E"
To the Agreement between
JetBlue Airways Corporation and LiveTV, LLC
Seat Modification and Installation for Aircraft #1, #2 and #3
LiveTV will be responsible for the design, fabrication, modification,
installation and certification efforts to deliver three (3) shipsets of seats
with in-seat video installed to JetBlue. A total of one hundred sixty two (162)
passenger positions per aircraft will be provided.
JetBlue shall deliver to LiveTV the unmodified seats, Model ▇▇▇▇▇ 5150, at a
location and according to a schedule, mutually to be agreed upon.
The following activities are LiveTV's responsibility for these three (3)
shipsets:
1. Modification of all seatbacks to accept television monitors and
credit card readers.
2. Installation of television monitors and credit card readers.
3. Modification of the seat armrests to accept LiveTV Passenger Control
Unit and headphone jacks.
4. Installation of the Passenger Control Units and headphone jacks.
5. Installation of all in-seat cables and harnesses.
6. Installation of one (1) Seat Electronics Box (SEB) per triple
seatgroup.
7. Installation of all necessary seat-mounting kits, cover plates and
shrouds.
8. Modification and installation of the seat covers.
9. Test the seatgroup for proper operation.
JetBlue and LiveTV, LLC Agreement
December 05, 2001
JetBlue(TM) and LiveTV(TM) Proprietary Information 42
ANNEX "F"
To the Agreement between
JetBlue Airways Corporation and LiveTV, LLC
Seat Modification and Installation for Aircraft # 4 and above.
JetBlue will be responsible for delivering to LiveTV all seats for
aircraft #4 and above fully Provisioned for In-Seat Video".
These seats will be Model ▇▇▇▇▇ 5150, and will be delivered to LiveTV at a
location and according to a schedule mutually to be agreed upon.
It is understood that "Provisioned for In-Seat Video" means that all seats
have:
1. Cutouts to accept the video screen and credit card readers,
including the necessary installation kits, shrouds and
brackets.
2. Cutouts in the armrest to accept the LiveTV Passenger Control
Unit and headphone jacks, including necessary installation
kits.
3. All in-seat cables and harnesses installed and tested.
4. All necessary installation kits, brackets, cover plates and
shrouds to accept the Seat Electronics Box (SEB)
5. Modified seat covers to accept seatback video screen and
credit card reader.
After receipt of the seats by LiveTV, LiveTV will:
1. Install the television monitors and credit card readers.
2. Install the Passenger Control Units and headphone jacks.
3. Install one (1) Seat Electronics Box (SEB) per triple
seatgroup.
4. Test the seatgroup for proper operation.
JetBlue and LiveTV, LLC Agreement
December 05, 2001
JetBlue(TM) and LiveTV(TM) Proprietary Information 43
"Annex G"
[****]
--------------------------
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
JetBlue(TM) and LiveTV(TM) Proprietary Information 44
Annex H
Certification Documents
[****]
--------------------------
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
JetBlue and LiveTV, LLC Agreement
December 05, 2001
JetBlue(TM) and LiveTV(TM) Proprietary Information 48